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Strasbourg finds against Ukraine over ill-treatment of a prisoner

A Zhytomyr prisoner has won his case in the European Court of Human Rights and been awarded 8 thousand Euro compensation. On 8 April the Court published its judgment in the case of Lotarev vs. Ukraine, lodged in 2004 finding that there had been a violation of Article 3 of the Convention on Human Rights (prohibition of torture and ill-treatment).

Ukrainian Helsinki Human Rights Union lawyer Oleh Levytsky explains that the State must now within three months pay Lotarev the compensation for beatings, apply sanctions against the guards indicated, and also make changes to ensure that the offences do not reoccur. He says that such cases are not isolated and that in general the State fulfils its commitments.

Vitaliy Lotarev, a life prisoner, was represented by Arkady Bushchenko. He complained that he had been ill-treated by the staff of Zhytomyr no. 8 Prison and that there had been no adequate investigation into the matter. He also complained about the conditions of his detention in the aforementioned prison.

The allegations were over use of force by prison wardens on 9 June 2004 and subsequent investigation

76. While admitting that force was used against the applicant by prison wardens on 9 June 2004, the Government submitted that it had been a legitimate and non-excessive reaction to his unruly behaviour. They contested, stating that it had been refuted by the documentary evidence, the applicants allegation that his two ribs had been fractured as a result of the incident at issue.

77. The applicant maintained his complaints. With a reference to the expert report of 10 September 2009 (see paragraph 36 above), he contested the Governments view concerning the possible date of his rib fractures as inconclusive.

78. The Court notes that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victims behaviour

79. At the same time, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

80. In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention

81. The Court notes that the applicant sustained fractures of two ribs within the prisons walls, which is not disputed by the parties. These injuries, which were assessed by a forensic medical commission as being of medium gravity (see paragraph 20 above), are sufficiently serious to amount to ill-treatment within the meaning of Article 3 (see Suptel v. Ukraine, no. 39188/04, § 48, 19 February 2009). It remains to be considered whether the State should be held responsible under Article 3 for these injuries.

82. As regards the circumstances in which the applicant suffered the injuries, the Court is confronted with two different accounts of the events given by the parties and with conflicting medical evidence as regards the possible time of the applicants injuries (see paragraphs 7, 8, 20 and 36 above). Furthermore, the case file contains a medical report excluding an accidental fall from the possible causes of those injuries, as well as the statements of the applicants cell-mates corroborating his allegation of an excessive use of force by the staff of Zhytomyr no. 8 Prison (see paragraphs 18, 31 and 32 above).

83. The Court does not find it necessary under the circumstances to verify the parties accounts and to embark on the establishment of the facts on its own, for the following reasons. As noted above, it is common ground that the applicant sustained a serious injury while serving his sentence in prison. That being so, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V). While in the present case the state authorities denied any relation between the incident of 9 June 2004 and the applicants injuries, they failed to advance any explanation whatsoever as to the origin of those injuries. The Court cannot accept the Governments argument that the prison administration was not aware of what had happened to the applicant, as being deprived of his liberty he was subject to its control and responsibility (see Satık and Others v. Turkey, no. 31866/96, § 54, 10 October 2000). Moreover, as a detainee, he was in a particularly vulnerable position and the authorities were under a duty to protect his physical well-being (see Vladimir Romanov v. Russia, no. 41461/02, § 57, 24 July 2008, with further references).

84. Accordingly, the Court concludes that the State is responsible under Article 3 of the Convention on account of the applicants ill-treatment in prison and that there has thus been a violation of that provision.

2. Alleged inadequacy of the investigation

85. The Government expressed the view that the State authorities had undertaken a prompt and thorough investigation of the applicants allegations, and the fact that the results yielded were unfavourable for the applicant did not undermine its efficiency. They underlined in that connection that the reopening of the investigation on two occasions illustrated the best efforts aimed at ensuring its completeness.

86. The applicant disagreed. He reproached the domestic authorities, in particular, for his delayed X-ray (according to him, in November 2004) and unjustified disregard for his cellmates statements corroborating his allegations. He viewed the repeated remittals of the case for additional investigation as a proof of its inefficiency.

87. The Court reiterates that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the States general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV). The minimum standards as to effectiveness defined by the Courts case-law also include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006‑III).

88. In the present case the Court has found that the respondent State is responsible under Article 3 for the ill-treatment of the applicant (see paragraph 84 above). The applicants complaint in this regard is therefore “arguable”, which means that the authorities had an obligation to carry out an effective investigation into the circumstances in which the applicant sustained his injuries (see Krastanov v. Bulgaria, no. 50222/99, § 58, 30 September 2004).

89. It is not clear when the applicant raised the complaint about his alleged ill-treatment before the domestic authorities for the first time. Even assuming that it was no earlier than on 25 August 2004 (the date when the applicants mother complained to the prosecutor), the response of the authorities cannot be regarded as prompt. Having regard to the findings of the medical report of 29 November 2004 and the prosecutors conclusions in the decision of 2 April 2005 (see respectively paragraphs 20 and 27 above), the Court does not accept the Governments assertion that the applicant was X-rayed immediately after the incident of 9 June 2004. According to the documentary evidence, it was not until November 2004 when he was X-rayed for the first time after the mentioned incident, which is with a delay of five months (or three months if calculated from 25 August 2004). As is stated in a later expert report of 10 September 2009, which was produced at the request of the applicants lawyer and was not disputed by the Government (see paragraph 36 above), such a delay undermined the ability of the investigation to establish with precision the date of the applicants injuries, which was essential in the present case. That amounts to a deficiency sufficient in itself for the investigation to fall foul of the promptness and reasonable expedition standards

90. The Court does not lose sight of the criticism towards the domestic investigation expressed by the Zhytomyr Prosecutors Office in the decisions of 28 October 2004 and 2 April 2005, by which the investigators refusals to institute criminal proceedings on the applicants complaint were quashed and additional investigation was ordered. In both cases the investigation was criticised for its failure to duly examine other inmates in the prison whose statements might shed light on the events of 9 June 2004. It is true that subsequently the investigator questioned two inmates with whom the applicant had been sharing the cell as of 9 June 2004 and later (A. and O.), and both of whom corroborated his account of the events. The investigation however dismissed the statements of A. with the sole explanation that it was “apparently aimed at discrediting the prison administration”, while it disregarded without even commenting the statement of the other inmate (see paragraphs 21 and 33 above). At the same time, the statements given by the prison wardens were accepted as accurate and reliable. This is a selective approach in the assessment of evidence by the investigating authorities, which the Court has already criticised

91. Lastly, but not less importantly, the Court notes that the domestic investigation, although being confronted with an established fact that the applicant had sustained multiple ribs fractures in prison, failed to establish what had in fact happened to him, which was not seen as an obstacle however for dismissing his allegation of ill-treatment as unsubstantiated.

92. The foregoing considerations provide sufficient basis for the Court to conclude that the State authorities fell short of their obligation to conduct an effective investigation into the applicants allegations of ill-treatment as required by Article 3 of the Convention.

93. The Court will examine now the Governments objection as to the exhaustion of domestic remedies previously joined to the merits (see paragraphs 72 and 74 above). First of all, it notes that although the Government produced a copy of the prosecutors letter of 20 April 2005 notifying the applicants mother of the decision about the refusal to institute criminal proceedings upon the applicants complaint of ill-treatment (see paragraph 34 above), it was not post-marked and the Government put forward no other evidence that this letter, together with the decision of 19 April 2005, had actually been sent or otherwise delivered to the applicant or his representative. The Court has already found in a similar situation that under the circumstances the applicant could not be considered to have been duly informed of the decision at issue, which was sufficient for rejecting the Governments objection as to exhaustion of domestic remedies (see Muradova, cited above, § 131). In any event, had even the applicant been informed of the aforementioned decision, the Court considers that he cannot be reproached for not seeking repeated reopening of the investigation, which is found it be ineffective (see paragraph 92 above and, for the case-law, Yaremenko v. Ukraine, no. 32092/02, § 70, 12 June 2008).

94. Accordingly, the Court dismisses the Governments objection as to the exhaustion of domestic remedies and finds that there has been a violation of Article 3 of the Convention under its procedural limb as well.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANTS DETENTION IN ZHYTOMYR NO. 8 PRISON

95. The applicant also complained under Article 3 of the Convention that the conditions of his detention in Zhytomyr no. 8 Prison were inadequate.

96. According to the Government, the applicant failed to raise these complaints, at least in substance, before the prison administration, the State Department of Enforcement of Sentences, the prosecution authorities or courts. Therefore, he could not be regarded as having exhausted the domestic remedies. In the alternative, the Government submitted that these complaints were incompatible ratione personae with the Convention provisions as being too vague and unspecified to the applicants personal situation.

97. The applicant disagreed. He noted that the domestic authorities were sufficiently informed about his situation and had the opportunity to examine the conditions of his detention, in particular following his mothers complaint to the prison administration on 22 February 2005. As to the Governments second objection, the applicant submitted that the conditions of his detention did not differ from those of other prisoners. Accordingly, he was under no obligation to specify his personal case. In substantiation, the applicant referred to some extracts from the CPT report following its visit to Zhytomyr no. 8 Prison in 2002 (see paragraph 65 above for the extracts relevant for this case, which include those referred to by the applicant).

98. The Court does not find it necessary to address the Governments objections concerning non-exhaustion and incompatibility ratione personae, as the applicants complaints concerning the conditions of detention are in any event inadmissible for the reasons set out below.

99. The Court reiterates that, under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity, that the manner and method of the execution of the measure do not subject the detainee to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that the individuals health and well-being are adequately secured. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention in the particular conditions (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001‑II, and Kalashnikov v. Russia, no. 47095/99, § 102, ECHR 2002‑VI).

100. In the present case the applicant complained about the following issues: the sanitary conditions in cells and wards; the lack of space; the quality of the distributed food and the prices in the food shop; as well as the qualification of the medical staff.

101. The Court notes that he provided neither factual details nor documentary evidence in support of those complaints. The only substantiation provided by the applicant was limited to selected extracts from the CPT report.

102. The Court has not always required that an applicant support each and every allegation with particular documents in cases concerning complaints about detention conditions, recognising that relevant information and possibilities to investigate the facts in such cases lie primarily in the hands of the authorities. However, in order for the Court to reverse the burden of proof and examine the merits of the complaints, they must at least have been clearly and consistently formulated (see, for example, Trepashkin v. Russia, no. 36898/03, § 85, 19 July 2007).

103. The Court does not consider that the applicants complaints concerning the conditions of his detention have complied with that minimum requirement. As it transpires from the facts of the case, as well as from the CPT report (see paragraphs 18, 31 and 65 above), the applicant changed cells quite often, which in itself he did not complain about. He did not specify however about the conditions in which cells (or the medical wards) he was complaining and for how long he had been held there. Equally vague are his complaints about the qualification of the medical staff and the quality of food, being uncorroborated with any details or examples. As to the applicants submission about some dangerous ingredients being added to food, the Court notes that it was a mere speculation and that the applicant did not even allege having been personally affected.

104. As regards the CPT report relied on by the applicant, the Court accepts that its findings are relevant and provide at least to some degree a reliable basis for the assessment of the conditions of the applicants detention before the introduction of his application in 2004 (see Iovchev v. Bulgaria, no. 41211/98, § 103, 2 February 2006, and Dvoynykh v. Ukraine, no. 72277/01, § 64, 12 October 2006). It observes however that the applicant chose to rely on some isolated negative comments contained therein while disregarding the generally positive conclusions concerning, in particular, the material conditions of detention of life prisoners, praised efforts of the staff to accommodate their hygienic needs, as well as the overall progress in combating tuberculosis. As to the lack-of-space allegation, the CPT noted that at the time of its visit (2002) the prisons cells allocated for life prisoners were not full to the limit of their capacity (accommodating 1,199 prisoners, while having the capacity of 1,600 places). Although the actual space for some prisoners could have been below the accepted standards, the Court notes again that the applicant failed to specify whether, how, and for how long it had been his case.

105. It is true that the CPT report raised some issues concordant with the applicants complaints. Namely, it criticised the restrictions on the number of food parcels for life prisoners, the limited access to supplies from the prison shop given the common lack of earnings, and “slower progress with regard to the standard of food for prisoners suffering from tuberculosis”.

106. The Court does not consider that those general problems as highlighted by the CPT are sufficiently grave in the applicants case to go beyond the threshold tolerated by Article 3 of the Convention. It also does not lose sight of the fact that on 28 December 2007 the restriction on the number of food parcels for life prisoners was lifted (see paragraph 64 above).

107. As regards the nutrition for prisoners suffering from tuberculosis, the Court notes that, again, the applicant failed to provide any details, while the CPT acknowledged some, albeit slow, progress in that regard. On the facts of the case, the Court notes the following. In March 2002 the applicant denied being sick with tuberculosis at all, although he continued to receive medical treatment (see paragraphs 38 and 39 above). Later on, after his disease was confirmed in April 2006, he was transferred for more than a year (from 4 December 2006 to 21 February 2008) to the Kherson no. 61 Prison for specialised treatment (see paragraph 42 above), and he did not complain in his application about the nutrition in that prison. Lastly, the Government provided documentary evidence that after his return to Zhytomyr no. 8 Prison in February 2008, the applicant received a special diet in the framework of the recurrence prevention programme on a regular basis in 2008 and 2009 (see paragraph 50 above). The Court therefore considers that the complaint concerning the special tuberculosis-related diet equally unsubstantiated.

108. Having regard to all the foregoing, the Court concludes that the applicant has not made up an arguable claim about the incompatibility of his detention conditions in Zhytomyr no. 8 Prison with Article 3 of the Convention (see, for comparison, Ukhan v. Ukraine, no. 30628/02, §§ 65‑66, 18 December 2008, and Vergelskyy v. Ukraine, no. 19312/06, §§ 89-91, 12 March 2009). It therefore dismisses this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. THE REMAINDER OF THE APPLICATION

109. With a general reference to Articles 1, 2, 3, 6, 8, 9, 13, 17 and 34 of the Convention, the applicant complained that he had been wrongly diagnosed with tuberculosis and subjected to forceful medical treatment against his religious convictions. He also alleged interference of the prison administration with his correspondence.

110. However, in the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions the applicant relied on.

111. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

112. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

115. The Court finds that the applicant must have suffered pain and distress which cannot be compensated solely by the finding of a violation. Having regard to the nature of the violations found in the present case and ruling on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non‑pecuniary damage plus any tax that may be chargeable.

B. Costs and expenses

116. The applicant did not lodge any claim under this head. The Court therefore gives no award.

C. Default interest

117. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

2. Decides to join to the merits the Governments objection as to the exhaustion of domestic remedies in respect of the applicants complaint under Article 3 of the Convention concerning his alleged ill-treatment by the prison staff and dismisses it after having examined the merits of that complaint;

3. Declares admissible the complaints about the applicants alleged ill-treatment in prison and the lack of an effective investigation into that allegation;

4. Declares the remainder of the application inadmissible;

5. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

6. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousands euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants claim for just satisfaction.